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Sousa v. Roque

August 21, 2009

BRYAN SOUSA, PLAINTIFF-APPELLANT,
v.
ARTHUR ROQUE JR., ROBERTKALISZEWSKI, JOANNEDRIVER, WILLIAMEVANS, AND JANE STAHL, DEFENDANTS-APPELLEES.*FN1



SYLLABUS BY THE COURT

Plaintiff, a former employee of the Connecticut Department of Environmental Protection ("DEP"), appeals an April 23, 2007 judgment of the United States District Court for the District of Connecticut (Janet C. Hall, Judge), which granted a motion by defendants, all DEP officials, for summary judgment on plaintiff's claims that they had retaliated against him in violation of the First Amendment for complaints he made regarding primarily workplace violence. Specifically, plaintiff argues that although the District Court correctly concluded that he was speaking "as a citizen" and not "as an employee" for the purposes of the First Amendment, the District Court erred in concluding that his speech was unprotected because it was not on a matter of public concern.

We acknowledge that our precedents on what constitutes "a matter of public concern," and particularly, the extent to which a court may take into account the speaker's motives when making that determination, are less than clear. We reaffirm our earlier holding in Reuland v. Hynes, that "the speaker's motive is not dispositive in determining whether speech is on a matter of public concern." 460 F.3d 409, 411 (2d Cir. 2006). Because our holding is at odds with the District Court's conclusion that Sousa's speech did not address a matter of public concern solely because he was motivated by employment grievances, we vacate the District Court's order granting summary judgment to defendants on Sousa's First Amendment claim.

Vacated and remanded.

The opinion of the court was delivered by: JOSÉ A. Cabranes, Circuit Judge

Argued: November 5, 2008

Before: CABRANES and HALL, Circuit Judges, and GLEESON, District Judge.*fn2

Plaintiff Bryan Sousa ("plaintiff" or "Sousa"), a former employee of the Connecticut Department of Environmental Protection ("DEP"), appeals an April 23, 2007 judgment of the United States District Court for the District of Connecticut (Janet C. Hall, Judge). That judgment granted a motion by Arthur Roque, Commissioner of the DEP; Robert Kaliszewski, Sousa's supervisor at the DEP; Joanne Driver, a personnel officer at the DEP; William Evans, a Bureau Chief of the DEP Personnel/Bureau of Financial and Support Services; and Jane Stahl, Deputy Commissioner of the DEP (collectively "defendants" or "DEP officials"), for summary judgment on plaintiff's claims that they had retaliated against him in violation of the First Amendment for complaints he made regarding primarily workplace violence. Specifically, plaintiff argues that although the District Court correctly concluded that he was speaking "as a citizen" and not "as an employee" for the purposes of the First Amendment, the District Court erred in concluding that his speech was unprotected because it was not on a matter of public concern.

We acknowledge that our precedents on what constitutes "a matter of public concern," and particularly, the extent to which a court may take into account the speaker's motives when making that determination, are less than clear. We reaffirm our earlier holding in Reuland v. Hynes, that "the speaker's motive is not dispositive in determining whether speech is on a matter of public concern." 460 F.3d 409, 411 (2d Cir. 2006). Because our holding is at odds with the District Court's conclusion that Sousa's speech did not address a matter of public concern solely because he was motivated by employment grievances, we vacate the District Court's order granting summary judgment to defendants on Sousa's First Amendment claim.

BACKGROUND

I. Factual Overview*fn3

Sousa began working as an engineer at the DEP in July 1987. By 1995, he had become a supervising sanitary engineer in the Water Bureau, a division within the DEP. In October 2002, Sousa had a verbal and physical altercation with Jonathan Goldman-a "lower-level [DEP] employee." Sousa v. Roque, 3:05-cv-00822 (JCH), 2007 WL 1100318, at *2 (D. Conn. April 10, 2007). As a result of the incident, both Sousa and Goldman were suspended for three days without pay.

Following his altercation with Goldman, Sousa began making numerous complaints to DEP officials, focusing on the discipline he received as a result of the incident and, more generally, workplace violence within the DEP.*fn4 Around this time, Sousa also reported his concerns about a hostile work environment in the DEP. Sousa complained about incidents of group harassment against him called "mobbing," which is a process of abusive behaviors inflicted over time. Specifically, he reported that he had been harassed by various lower-level employees, and that two lower-level employees had also suffered harassment-which Sousa took to be evidence, in part, of "reverse discrimination" within the DEP. Sousa then wrote to Marcia Bonito, the DEP's Affirmative Action Administrator, again focusing on his claims of a hostile work environment, workplace violence, and "reverse discrimination." He made similar complaints to Richard Blumenthal, the Attorney General of the State of Connecticut.Finally, Sousa articulated several of these concerns in an April 23, 2003 memorandum to his union.

One of Sousa's complaints in particular troubled DEP officials. On July 23, 2003, Sousa sent an e-mail to two DEP employees, Karen Calieno and Lisa Piccarello, about providing a book on "mobbing" to members of the DEP's Workplace Violence Threat Assessment Team, id. at *2 n.3. In the e-mail, Sousa wrote:

When you read the book you will recognize that mobbing can often result in the death of the victim, either due to illness, accident or suicide. Another reference suggested that, in light of such ramifications, workplace mobbing should be viewed as the last remaining legal means of committing homicide. I personally see it as a form of group vigilantism.

Id. at *2. Following this e-mail, the Human Resources Office of the DEP ("HR") sent Sousa a letter on August 12, 2003, requiring him to undergo a fitness-for-duty evaluation.

Although the events that followed are in dispute, both parties agree that Sousa was on leave for a substantial amount of time following HR's request that he undergo a fitness-for-duty evaluation. The District Court found that Sousa was put on paid leave on September 29, 2003, and then on unpaid leave on October 15, 2003, while Sousa's doctor was gathering information for his fitness test. Sousa was eventually found fit for duty in November 2003, and he was instructed that he should report back to work on December 1, 2003. Sousa informed Evans, a Bureau Chief of the DEP Personnel/Bureau of Financial and Support Services, that he did not want to return to work out of fear for his safety. Sousa remained out of the office for the month of December, using a combination of vacation time and sick leave.

Sousa returned to work in January 2004, and then requested that he be allowed to work from home or "telecommute." Sousa's supervisors denied the request. During the months that followed, Sousa continued to take various forms of leave.*fn5 While Sousa was on paid sick leave in the fall of 2004, he was informed that he would have to return to work on October 18, 2004, or he would be classified as being on "unauthorized leave without pay." Id. at *5. Sousa did not go to work on that date, and after five days, a hearing pursuant to Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538-46 (1985) ("Loudermill hearing"), was set for November 17, 2004.*fn6 There remained some concern about whether Sousa was still fit for duty; however, an independent medical examiner reported that Sousa would be fit for work as of December 20, 2004. Sousa did not ...


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